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The Rule of Lawyers
Let me start by telling you a story. Mr. @MattBalzer and I, we make board games. One of these games we call the Presidential Rumble. You play as one of history’s greatest presidents in the midst of a knock-down drag-out election against each other, marshaling characters from the past and laying claim to the symbols of liberty. You get some pretty great things going on; in one game Martin Luther King Jr. named Frank Sinatra to the Supreme Court. In another, Joe McCarthy declared Tecumseh to be a communist. You’ll frequently see the FBI confiscate the Constitution as evidence or the EPA declare the Statue of Liberty to be polluting and destroy it.
I’ve printed up several prototypes too. There’s a company out of Madison, WI called The Game Crafter that specializes in this sort of thing. They’ve got a pretty good racket; there are a lot more people who want to make board games then there are people who will make a living that way. The Game Crafter will professionally print and assemble single copies of a game, so you can get your idea produced even if your only customer is your mother. Really I’ve had excellent experiences with them, excepting one thing.
The last time I tried printing up a copy of my game they flat out refused because my game was referencing real people I may have been legally infringing on their personality rights. Up until that point I hadn’t heard of such a thing, but five minutes on the internet brings up the Wisconsin statue (they and I operate out of WI, so Wisconsin law should be good enough for the both of us.) The law prohibits:
The use, for advertising purposes or for purposes of trade, of the name, portrait or picture of any living person, without having first obtained the written consent of the person or, if the person is a minor, of his or her parent or guardian.
Okay, I don’t have John Hancock’s John Hancock stating that I can use him in my game. On the other hand, the guy’s been dead for a couple hundred years. Shouldn’t the law only apply to living persons like the black-and-white text says? Simply for game design I had already decided I didn’t want living people represented in the game. I don’t want real life political arguments to spill over into the entertainment. Trying to negotiate, I offered to abide by California’s (always an innovator in the field of kookiness) life + 70 standard, but no dice. I couldn’t even get them to agree that George Washington could be a character in a game.
The problem I’m having here isn’t the question of whether or not I was doing something illegal. The problem I have is not knowing. I can read the plain text of the law and say that what I was doing was legal. That doesn’t matter. Anything close to the edge of what the law allows also allows a lawyer to swoop in and sue you. Assuming they don’t win you’re still out a tremendous amount of time, money, and aggravation to fight it off. It’s a high stakes game of chicken, and the winning strategy is to preemptively concede the field.
If the law says it’s one thing, but then, in reality, is something beyond that, then what exactly is the real law? Imagine a courtroom with a mafia don on trial; he’s bought the judge, the jury, the whole works. Is that justice? Obviously not. It’s got all the trappings of justice though; the court, the officials, the jury, they’re all the people who are supposed to decide matters of justice. Let’s take it one step further. Let’s say that on one side of a court case you’ve got a stumble-mouthed idiot, and on the other side you’ve got an insider who knows all the tricks, every jot and tittle that might get him an advantage. Is that justice?
The court seems to think it isn’t. That line in the Miranda rights about having a right to an attorney. But what if that didn’t just apply to a courtroom? What if you lived in a society of lawyers, with lawyers staffing all the legislatures, writing laws that other lawyers will argue the meaning of in front of courts judged by lawyers? What if the law-as-written is also hedged in by a horribly complex Talmud of precedent, which can only be expounded by experts? What if every action you take or fail to take is governed by these arcane minutiae, such that anyone at all with sufficient malice could assault you through the courts, and the only defense you’d have against them is your own team of lawyers?
What if none of that is a hypothetical. Take a moment and reckon about that Supreme Court case. It’s a full-employment scheme for lawyers enacted by a court reviewing the decisions of other courts, and it has all the force of a Constitutional Amendment because of a previous decision by another Supreme Court. Say what you will about the rightness of the decision, there’s nothing in there that even smells like a check or a balance.
The phrase “The Rule of Law” sets itself up in opposition to “The Rule of Men”. But we don’t have the Rule of Law. We have the Rule of Lawyers, who rule us not with the Divine Right claimed by a King, but by being better at manipulating the system they set up.
Published in Law
A past boss used to say that if the lawyers get involved, you’ve already lost.
Wow. I was interested in this when it was just a post about making board games. Then it got better.
I wish I could remember the name of the show or movie, but I saw some TV lawyer bragging to someone powerful from another country to the effect of “America is run by lawyers, and they write the laws to be beneficial to lawyers.”
As one of those awful lawyers, I think you are overstating the case, but I will admit there is a danger in that, in many areas of law, the law has become hidden to the average citizen.
But, remember, behind these lawyers who are suing and pushing the boundaries of the statutory texts and common law principles, there are clients with a grievance they want addressed. Because we have the rule of law, they do that through the court system, rather than some other form of homemade justice.
Textualism is, at least in part, a remedy for this. There is no way a textualist judge would interpret that statute to include long dead historical figures.
I disagree that there is a substantial difference between the Rule of Lawyers and the Rule of Law. Some difference, perhaps, but not a great deal. Now, the Rule of Judges and the Rule of Juries, that may be something else.
I’m not a lawyer. There are and certainly have been examples of loony interpretation of law, but most of the examples I’ve looked at usually made some kind of sense. In this case, I wonder if part of the problem isn’t an exaggerated fear of the estate of Rutherford B. Hayes coming after them, but the stock shot company or image archive who grabbed the rights to old photos that were once in public domain. People who create and trade stock content have genuine property rights that aren’t easy to protect. So companies like the board game fabricators are gun-shy about everything.
Good point. There are only so many pictures available for some of these people.
“The more laws, the less justice.” – Cicero
I am a lawyer. Most of my career has been minimizing the possibility of my (large corporation) clients from getting sued.
There are too many laws. There are so many laws that Joe Citizen has no way of knowing whether any particular act he takes might violate some law of which he is unaware. That is wrong. A citizen should be able to go about his day with confidence that he is not violating the law.
But, following up on the comment above by @daventers many (most?) of those laws were put in place because someone perceived something wrong and sought to fix it. It’s unfortunate that the law has become the correction of first resort. But in a multicultural society in which we can’t count on our neighbor having the same core values we do, we increasingly rely on the force of the law to do that which a common culture won’t.
As the number of laws increases, the areas in which different laws rub against each other increase. Some of that rubbing against each other creates conflicts between the different laws. Resolving those conflicts causes laws to become increasingly complex, and increasingly creates fine points of law that are hard for Joe Citizen to understand.
And then in the name of “fairness,” the process of using the law becomes more complex. Again, it’s for good reason – the aggrieved and the accused should each have his “day in court.” But, then the process risks becoming so complex that the process becomes the punishment.
Your board game manufacturer probably wants to stay far from the edge of the law so that, not only would they win a lawsuit, but there would be no rational basis on which a lawsuit could be filed. For most of my large corporation clients, just getting sued was a loss because of the large numbers of dollars that would be spent on the process.
I agree that there is a problem, but I don’t have a solution to propose, except to suggest we make our first reaction to a perceived wrong talking with our neighbor (not yelling at them on “social” media), and not yelling, “there aughtta be a law.”
Paying my salary, in point of fact, as I am a document review attorney. And working for the company that does Apple’s document review for all their lawsuits is about the closest thing to guaranteed employment for life as one is likely to get in this economy.
Are fantasy sports legal? It uses real people. And it isn’t based on reality in the sense that your team is made up of real people in a fantasy setting.
I know that most people are not aware of the numerous laws that legislatures are passing all the time. Most don’t make the news, you have to go to a site that aggregates them. And that helps makes the law selective and unevenly enforced.
I’m going to reiterate what Mr. Webster said:
To be sure I don’t excuse the grifters and fusspots who’ve done so much to set up the system as we have it. And I agree that homebrew justice tends to be no such thing (although I wouldn’t object to the reintroduction of dueling, but that’s another question.)
My point is that the court system is set up such that you can’t possibly get anything like a good outcome unless you’re fielding a team of lawyers of your own. The court case linked up above mentioned Clarence Darrow getting a lawyer himself when he was accused of a crime. That’s an indictment of the system.
I asked about that; while I have a pretty good idea that most of my pictures are in the public domain I can by no means prove so. The lady on the other end of the line said explicitly that even if I had gotten an artist to render the people in question it wouldn’t count.
They aren’t, by the text of the law. I’m guessing that somewhere in the contract those NFL players signed they grant the NFL license to broadcast their images etc. Not unreasonable. I’m guessing that the various betting leagues that you see advertising purchased the rights to use the player’s names etc.
But your office pool? You respect the rule of law too much to engage in any such thing, don’t you?
Great post!
Have you thought of making up parody names? Han Johncock? ( ok not that, but you get the point)
Could they sue for that? They’d have a harder time i’d imagine.
And I love the idea of making your own board game!
I’d like to make the Commuter game, when you have to go through areas where fines are ‘tripled’ and if you injure or kill a worker you get prison time and a fine. There’d be a clock and if you arrive late for work ( like passing Go) you would get a pink slip. Three pink slips and you’re fired. But it probably wouldn’t sell because it’s too much like real life.
The law says, in black and white, “living person”, and the lawyers have screwed things up so badly that there’s even a question as to whether it applies for people who are unquestionably dead (and thus *not* living)?
This is why people hate lawyers.
Solution? Who’s got a solution? There’s always going to be injustice in this world, and assuming I could rub a lamp and cause a genie to reset the laws to something I’d find acceptable there’d still be injustice. But assuming a magic lamp, here’s how I’d start.
Yeah, that would work. It’d also drain quite a bit of the fun out of the game. At least to the kind of nerd I am, but I imagine to the general public as well. (And before I move on, your Commuter game could probably be done. People watch Office Space entirely because of how much it reflects their real life.)
Yeah, that’s my problem. It isn’t just the law, but the vagueness of the laws combined with the high penalty associated with mounting a successful defense against a lawsuit that erects a hedge around anything that might be kinda-sorta look like it might impinge on the laws.
Hank, I think that these are very bad ideas.
Defining crimes in terms of the harm done means, for instance, no difference between first-degree murder and negligent homicide in an auto accident.
Jury nullification will give more power to lawyers, not less, and will give more of an advantage to parties who are attractive (not just physically). Persuasiveness will be at an even higher premium. It also means that law will become far more unpredictable.
Granting less respect to precedent will also give more power to persuasive lawyers, and make it even more difficult to predict outcomes.
Complaining about SCOTUS justices being lawyers is like complaining about surgery being performed by doctors.
Here is the Wikipedia article on personality rights, which includes a pretty good overview.
Part of the challenge that you face is that such rights are protected both by common law and statutory law. So the Wisconsin statute says “living person,” but the common law may well apply to dead persons as well.
This may seem strange to non-lawyers. In most states, a substantial portion of the law under which we live is non-statutory. This does vary from state to state, but the “code” states are few, I think (California and Louisiana are the only ones that I know of).
In my home state of Arizona, for example, most of the law of tort, contract, and property is common law. If you’re injured by negligence, or by someone punching you in the nose, you sue for a common law tort. Ditto for fraud. Ditto for breach of contract, in most instances (though the Uniform Commercial Code, a statutory framework, governs sale of goods).
You complain about the complexity of precedent, and I understand your concern, but much of the reason for the complexity of the law is the complexity of life. Precedent gives a framework for applying common rules in different cases. The alternative is to just present the facts to a judge or jury, with no reference to legal principles, and then ask them to do what they think is right. Such a system is subject to more error than the present system.
I’ll grant that there ought to be a difference between murder and manslaughter, but what does the car have anything to do with?
It’d also require reasonable people to stop playing ‘get out of jury duty’ like it’s a game show. I’m less interested in the kind of criminal case (young tattooed black man knocks over a convenience store) than I am with statutory violations (GloboCorp accused of dumping copper wastewater into our river systems.) Maybe GloboCorp was negligent, and ought to have their pants sued off of them. On the other hand maybe the EPA is exceeding their mandate again. In that case the question of justice ought to arise, and I simply don’t trust the trained professionals to have an objective view on it.
On the other hand, it’ll also mean that someone won’t have to have a shelf of identical books behind his back to predict the outcome. The whole point of the argument is that if only the people in the in-crowd can play the game then the in-crowd rules over you.
Not surgery, health decisions. When I check into a hospital I don’t just say “eh, do whatever. Think I need my tires rotated? Go for it.” The way that the Supreme court has set itself up as a super-legislature their decisions aren’t just on what the law is, but often on what the law ought to be. That’s not something that should just be left to lawyers.
Much as I like you @amyschley and want you to be employed, my corporate employer’s business was developing, manufacturing, and selling printers and copiers and other equipment, and employing litigation-driven document review attorneys did not further that business, and so the corporate objective for my budget was to minimize the need to hire document review (and other litigation related) attorneys. So sorry Amy. :-)
Oh, I do understand. For the good of society, I wish my job didn’t exist. Same with my appraisal review job a few years ago, which only existed because of Dodd-Frank.
I’m just noting as someone who only has a job because the process is the punishment, I have a better idea than most about just how much drag my colleagues and I exert on the economy. As I noted in a phone job interview last week, I’d prefer to work for a company that actually creates value instead of, at best, minimizes the value being lost to the legal system.
Just want to add a quick defense of precedent. It has its drawbacks, of course, as it does add a layer of difficulty for the average person to discover what the law is – they would have to look for the court’s opinions to know for sure. But it provides more certainty than leaving courts untethered to prior decisions. It is also a limitation on judicial power. If the legislatures do not like the interpretation that takes hold through precedent, it provides clarity for them to more easily overturn it by amending the statute in question.
I think Mark Steyn has a decided opinion on this.
Thought-provoking post. But I find my inner editor provoked, as well. The Andrew Carnegie card contains a typographical error.
Vehicular homicide is generally the lowest level punishable by the criminal law. This varies from state to state. The difference is generally the mens rea involved — which is a fancy legalese term for mental state, and the sort of distinction that (with many others) creates much of the need for lawyers in the first place.
Murder is generally intentional killing, with “first degree” adding the requirement of premeditation. Manslaughter is generally based on a recklessness standard, or sometimes applies when a killing is intentional but there is some degree of justification.
I think that it is relatively rare for a jurisdiction to apply a criminal sanction when the defendant’s mental state is ordinary negligence. Vehicular homicide is a fairly common exception to this, I think, though I think that some jurisdictions apply a standard of “gross negligence.”
My point was this. Your proposal was to define crimes in terms of the harm done (your #17). This would leave no distinction between murder, manslaughter, and vehicular homicide. In fact, if you take out the mens rea component at all, which is done with respect to certain “strict liability” crimes, even an innocent driver could be criminally punished.
Aside from the larger questions you ask in this post, why couldn’t you just have an artist draw an image of the person and use the artist’s image, whom you could pay a specific amount for his work, and thereby own the image yourself?
If they are basing the drawing on an existing picture – and how else would they do it? – he would be right back where he started. The artist would need market rights to that image.
I think “Solo” would have done better if it had been called “Han Johncock”.